MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 March 2002                  
	DOCKET NUMBER:   AR2001064097

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr..		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Walter T. Morrison		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect that his separation for physical disability that existed prior to service (EPTS) be changed.

APPLICANT STATES:  In effect, that new evidence disputes all discharge claims.  He desires to appear before the Board.  In block 11a (date of discovery of alleged injustice the applicant wrote, “Review if records-improvement in mental condition.”  In block 11b (rationale as to why the Board should waive the failure to timely file and consider the merits of the case) he wrote, “Past incident not a reflection of mental status in present.  Family and others unaware of why it happened this way.”   

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant’s application (DD Form 149) was not entirely clear and it was initially closed because the staff could not determine exactly what correction the applicant desired.  In subsequent correspondence, the applicant requested that his discharge be changed to an “entry level separation (ELS) or reserve status.”  That those issues were closed without action with a letter to the effect that the applicant was not eligible for ELS and that there was no valid reason or authority for separation for “Reserve status.”

Currently the applicant states that he does not understand why he is not entitled to a hearing.

He enlisted and entered active duty on 10 November 1987 at the age of 21 years and 4 months.  He completed training as an air defense operations intelligence assistant; completed an unaccompanied tour of duty in Korea, where he was advanced to pay grade E-4; and was stationed at Fort Stewart, Georgia in May 1989.

The applicant was hospitalized and diagnosed with undifferentiated type schizophrenia.  He revealed a history of pre-service hospitalization with a similar diagnosis.  A medical evaluation board (MEB) found his condition to be unfitting, to be EPTS and to have not been aggravated by the period of service.  The board recommended separation for non-aggravated EPTS physical disability. The applicant was informed of the MEB findings and recommendations and concurred.  He was informed of his rights, including the right to have his case considered by a physical evaluation board (PEB).  On 18 December 1989 the applicant waived a PEB and requested expeditious discharge.  The request was approved and the applicant was separated with an honorable discharge on 21 December 1989.

There is no statutory or regulatory right to a formal hearing.  The Board receives over 15,000 applications each year, but normally grants fewer than fifteen formal hearings a year.  Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.

Army Regulation 635-40 sets forth the policy and procedures for physical evaluation for retention, retirement or separation.  Chapter 5 provides for the separation of non–aggravated EPTS conditions when a soldier waives consideration by a PEB. 

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an ELS for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment. These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Considering all the circumstances of the case the Board finds it in the interest of justice to waive the failure to file an application within the three-year limit and to consider the case on the merits.

2.  The applicant's disability separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The applicant had served more that 180 days and was not eligible for an uncharacterized ELS separation.

4.  There is no known valid reason or authority for separation of a soldier from active duty for “Reserve status.”  Additionally, the applicant’s EPTS condition, that would have precluded his entry into the service had he reported the true nature of his medical history, not only necessitated his separation from active duty it also disqualified him for service in a reserve component. 

5.  The applicant’s case is not so complicated or unusual that only original testimony at a personal appearance would enable the Board to reach a correct and equitable decision.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001064097	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020314	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.